STANDING COMMITTEE ON LEGISLATION

ELECTORAL AMENDMENT BILL 2020

TRANSCRIPT OF EVIDENCE TAKEN AT PERTH FRIDAY, 9 OCTOBER 2020

SESSION TWO

Members

Hon Dr (Chair) Hon (Deputy Chair) Hon Hon Simon O’Brien Hon ______

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Hearing commenced at 1.32 pm

Mr ROBERT KENNEDY Electoral Commissioner, Western Australian Electoral Commission, sworn and examined:

Mr LOUIS GARGAN Manager, Legislation, Communications and Human Resources, Western Australian Electoral Commission, sworn and examined:

Ms SABRINA DURHAM Senior Electoral Liaison Officer, Western Australian Electoral Commission, sworn and examined:

The CHAIR: I will open the hearing by thanking you for coming this afternoon. We are broadcasting the hearing so if you have any private documents, keep them flat on the table, and they will not be picked up by the cameras. Could you each take either the affirmation or the oath. [Witnesses took the oath.] The CHAIR: Can you each confirm that you have read and understood the document that you have signed, “Information for Witnesses”? The WITNESSES: Yes. The CHAIR: These proceedings are being recorded by Hansard and broadcast on the internet. The broadcast will also be available for viewing online after the hearing. If you have any objections to the broadcast being made available in that way, please let us know. A transcript of your evidence will be provided to you. To assist the committee and to help Hansard, could you please give the full title of any document you refer to during the course of the hearing. I remind you that the transcript will be made public. If for some reason you wish to make a confidential statement during today’s hearing, you should request that the evidence be taken in private session. If the committee grants your request, any public and media in attendance will be excluded from the hearing. Until such time as the transcript of your public evidence is finalised, it should not be made public. I advise you that publication or disclosure of the uncorrected transcript of evidence may constitute a contempt of Parliament and may mean that the material published or disclosed is not subject to parliamentary privilege. I will invite you to make an opening statement but I think you indicated that you do not need to do that. Mr KENNEDY: Yes. The CHAIR: We will cut straight to our questions. I will start by asking you about the ban on foreign donations. The committee understands that most of the political parties that are registered in this state are already covered by the ban on foreign donations because of the application of the commonwealth act because they are registered under that act. Is that correct; and, if so, what differences are there in the proposed provisions in this bill and the commonwealth act; which parties are already banned from taking foreign donations under the commonwealth legislation; and which WA parties would be covered by the new provisions only? Mr GARGAN: Madam Chair, basically, the commonwealth Electoral Act is a matter for the AEC. This current ban on foreign donations is a matter for government. We were told by the government that they wanted to ban foreign donations in so we acted on that instruction. This current ban would, basically, ban political parties, candidates, Legislative Council groups and other

Legislation Friday, 9 October 2020 — Session Two Page 2 persons from receiving a foreign donation unless that person is an Australian citizen or has an Australian business number. Hon NICK GOIRAN: Are the political parties that are currently registered in Western Australia currently prohibited by commonwealth law from receiving foreign donations? Mr GARGAN: Mr Goiran, I would think that if the WA Liberal Party accepted a foreign donation, it would not be against the Western Australian legislation. I think the WA Liberal Party, for the purposes of the WA election, could take a foreign donation and it would not be against the WA Electoral Act. Hon NICK GOIRAN: No, but what about the commonwealth act? I think that is the question from the chair. Mr GARGAN: Again, Mr Goiran, I cannot comment on the commonwealth Electoral Act. Hon NICK GOIRAN: If a political party from Western Australia takes a foreign donation, the Western Australian Electoral Commission is unaware whether that would be in breach of commonwealth law or not? Mr GARGAN: I will answer it the best way I can, Mr Goiran. Sabrina may want to comment on this because she works in that area, but if we got a complaint from someone saying, for example, the WA Liberal Party received a foreign donation, under the WA Electoral Act, it is not an offence. Hon NICK GOIRAN: You would take no further action? Mr GARGAN: No. I do not see how we could. Hon NICK GOIRAN: You would not refer it to the Australian Electoral Commission? Mr GARGAN: It is a totally different jurisdiction. It is different legislation. The commonwealth Electoral Act has got no bearing on the WA Electoral Act. Hon NICK GOIRAN: There is no memorandum of understanding? There is no dialogue that takes place between the two organisations? Mr GARGAN: The electoral commission may — Mr KENNEDY: Not on an official basis. There is no memorandum of understanding that requires me to report those sorts of matters to the AEC. If I believed it was necessary, I could. Mr GARGAN: Mr Goiran, during the next election coming up, if someone made a complaint to us about the Labor Party or the Liberal Party receiving a foreign donation, I would assess it is not an offence under the WA Electoral Act. Hon NICK GOIRAN: To what extent is the ban on foreign donations that is put in place as a result of this bill consistent with the laws in other jurisdictions in Australia? Mr GARGAN: Mr Goiran, I think different jurisdictions have bans on foreign donations—New South Wales has it and Queensland has it—and they are all different. This model, I believe—the government chose, not the WA Electoral Commission, because we were just given a direction—was based on the Victorian model, which is a complete ban. The AEC model allows small foreign donations up to $100, so they are subtly different. Why the government decided to ban foreign donations and that particular model, I cannot answer. Hon NICK GOIRAN: The Western Australian legislation is most consistent with the Victorian regime? Mr GARGAN: This model is based on the Victorian model. The argument is that it is simple. People can understand it. Minor parties could understand it. You do not have to have a legal background or a compliance background to understand that you have to be an Australian citizen or you have to

Legislation Friday, 9 October 2020 — Session Two Page 3 have an Australian business number to give a donation to a political party, whereas I think if you look at the definition in the commonwealth Electoral Act, it is a very complex thing. Hon NICK GOIRAN: To what extent is the Western Australian ban on foreign donations different from the Victorian legislation? Mr GARGAN: Sorry. What was the question again? Hon NICK GOIRAN: What is the difference between the Western Australian ban and the Victorian ban? Mr GARGAN: None. I think it is based directly on that, Mr Goiran. [1.40 pm] Hon NICK GOIRAN: Okay. The only difference with the commonwealth legislation is the definition? Mr KENNEDY: Principally. Mr GARGAN: I have no idea if the committee has had a look at the commonwealth brochure on foreign donations. I have no idea if you have had a look at it, but it is worth having a look at. It is different. You can make foreign donations under the commonwealth legislation up to $100. This particular bill, if it was passed by the WA Parliament, would be a complete ban on foreign donations. The commonwealth one is not a complete ban on foreign donations. It is subtly different. Hon NICK GOIRAN: Okay. One of the differences is the threshold, is it? Mr GARGAN: Again, in the commonwealth model, you can make a foreign donation up to $100. From then, up to about $15 000—the commonwealth donation threshold is $14 300—very different to WA. They are very different things, Mr Goiran, under very different legislation. Hon NICK GOIRAN: A foreign donor could not donate $14 000 under the commonwealth law, could they? Mr GARGAN: No. Hon NICK GOIRAN: But they can donate up to $100? Mr GARGAN: Up to $100—yes. One is a complete ban; one is not a complete ban. That is a matter for policymakers and parliamentarians to make that decision, not for us. Hon NICK GOIRAN: It is up to $100, is it? The instant you go beyond $100—or is it you are allowed to donate — Mr GARGAN: This is the AEC document on foreign donations. It may be useful to have a look at it. It is pretty straightforward, if you want to look at. Hon NICK GOIRAN: I am very interested in looking at all documents across the nation. I am just making sure that I properly understand the distinction between the Western Australian regime and what else is available. Mr GARGAN: Basically, what the AEC document says is that political parties and political campaigners are restricted from receiving gifts of $100 or more. You can receive a foreign donation up to — Hon NICK GOIRAN: As soon as you hit $100, then you are out? Mr GARGAN: Again, I am reluctant to comment on the AEC legislation, Mr Goiran. Hon NICK GOIRAN: Sorry. I thought that is what you just read—$100 or more. Mr GARGAN: Up to $100 and then after that—what it means as regards to the threshold of $14 300, I do not know.

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Hon NICK GOIRAN: Thank you. The CHAIR: Can you tell the committee whether consideration was given to copying the commonwealth definition of “foreign donor”? It has been suggested to us in several submissions that our definition of foreign donor is too broad. Mr KENNEDY: I think, Chair, the overriding approach that the commission took in terms of when we were asked for advice from the government in terms of the drafting instructions was to find a system that was as simple as possible but achieved the policy outcomes that the government desired. Simple not only for ourselves and my staff who are left to administer this sort of thing, but also simple for parties and those organisations that have to fill out the disclosures and provide them to us. From that point of view, that was one of the factors that was of interest to us over the AEC model. I understand in some discussions that our staff had with other jurisdictions, comments were made that the AEC model was pretty complex and extremely difficult to administer. That was one of the things that drew us to the Victorian model. As Mr Gargan said, it was fairly simple and straightforward. The CHAIR: Our definition is a mirror of Victoria’s, is it? Mr KENNEDY: Yes. The CHAIR: Okay. I imagine your response to this question will be very similar as well. The ban on receiving foreign donations appears to be total. Under the commonwealth act, there is an allowance for donations of up to $1 000 to be accepted without obtaining affirmation that the donor is not foreign. It also allows for bucket donations of up to $100 where the donor is known to be foreign. Can you tell the committee whether those exemptions were considered for Western Australia? [1.45 pm] Mr KENNEDY: No; I cannot; they were not considered by us; whether they were considered by government perhaps. The CHAIR: For the purposes of a state election, would all these exemptions apply to those parties registered under the commonwealth act or would all parties be covered by the total ban? Mr KENNEDY: That might be something we would need to take on notice. Can you read the question to me again just so I can follow that? The CHAIR: For the purposes of a state election, will these exemptions apply to those parties registered under the commonwealth act or would all parties be covered by the total ban? Mr KENNEDY: I would think it would be all parties. Mr GARGAN: Yes. If this legislation is passed, Madam Chair, this would mean a complete ban for foreign donations for political parties, candidates, Legislative Council groups and other persons who are contesting the next election in Western Australia. The CHAIR: Not just parties who are registered under the commonwealth act? Mr GARGAN: No; this would be for political parties who are registered in Western Australia. The commonwealth act will play no part in the this. The CHAIR: I do not think there is a need to take anything on notice in that case. Mr KENNEDY: No; sorry, I misunderstood your question. The CHAIR: That is fine. I raised this in my earlier question, but I just ask you specifically: it has been said that the ban on foreign donations would be easily avoided by a foreign person living in Australia

Legislation Friday, 9 October 2020 — Session Two Page 5 with residency rights setting up a number of companies, for example. Is that a correct reading of the bill? Mr KENNEDY: It is one reading of the bill, I think. In terms of responding to it, I think some of your witnesses this morning made the point that it may not be the perfect solution but it is a start in terms of improving the disclosure regime and from that point of view, the commission would agree with that particular point of view. Hon SIMON O’BRIEN: What did the WAEC have to do by way of involvement in the creation of this bill? Mr GARGAN: We were given a direction from government and cabinet on the bill. All the major stuff in here—expenditure caps, that donation figure dropping to $1 000—we played no part in that policy analysis. We were given a clear instruction by the government and by cabinet to do this, so we played no part in the main recommendation for this bill. Hon SIMON O’BRIEN: It was given over to you with instructions to have the bill drafted; is that the case — Mr GARGAN: That was it. Hon SIMON O’BRIEN: — containing the various elements? Is a copy of that directive available? Mr GARGAN: It was a cabinet decision. It came to the WA Electoral Commission saying do this, do that, do that, and we were asked to get on with it. Mr KENNEDY: My understanding is that—this precedes my appointment—as the government did with many of its election commitments, it allocated an election commitment to the responsible organisation, which, in this case, was deemed to be us. We created an original cabinet submission for approval to draft and that sort of thing, and we did that a few times as cabinet decisions were referred back to us for the addition of further policy items. Hon SIMON O’BRIEN: Just to line these ducks up right, Mr Kennedy, there was a directive to the WAEC to prepare a cabinet submission to give effect to that promise? Mr KENNEDY: In the absence of any other agency that supports the Minister for Electoral Affairs, we are the agency that ends up implementing the election commitment, and the election commitment at the time was around the disclosure threshold and I believe it was the online disclosure system. So I understand that was drafted up and referred back to cabinet and then from there, various items were added in by government. Hon SIMON O’BRIEN: Went through the normal processes. Mr KENNEDY: Yes. Hon SIMON O’BRIEN: Where was the original directive that kicked off that process? That is what I am looking for. Mr KENNEDY: I do not know; it precedes my time. Mr GARGAN: Cabinet instructions, Mr O’Brien—a couple of them actually. It started off with the disclosure figure and, as the commissioner said, online reporting and then moved on to quarterly reporting and the expenditure cap stuff came in later, just saying “direction: we want to introduce expenditure caps and here are the dollar amounts.” But we played no part in determining those dollar amounts or determining whether there should or should not be an expenditure cap. It was just a clear instruction. Hon SIMON O’BRIEN: I am seeking to find out how that instruction came about.

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Mr GARGAN: A cabinet decision. Hon SIMON O’BRIEN: Presumably a cabinet decision would have required a cabinet submission before then. Mr GARGAN: That is right. Hon SIMON O’BRIEN: This is chicken and egg. Was there an initial — Mr KENNEDY: Not necessarily. It is open to cabinet to change the decision. Not all cabinet decisions reflect the original recommendation, if you like, that is in a cabinet submission. Therefore, it is open to cabinet to add policy items into, in this case, the drafting of legislation. It is not unusual for governments to add items in when they are drafting a bill and refer that back to the agency even if it was not in the original submission. Mr GARGAN: Mr O’Brien, there were a couple of cabinet submissions. We got one; we did the submission and it came back amended; and we just followed the instructions basically of cabinet. So there would be two or three cabinet decisions on this. The CHAIR: Not a terribly mysterious process I would not have thought, Hon Simon O’Brien. Hon SIMON O’BRIEN: It is very mysterious. I have been a member of cabinet; that is not how cabinet works. The CHAIR: You have been informed that there were election commitments that generated the discussion. Hon SIMON O’BRIEN: Right. How were these election commitments communicated to you with a request to prepare a cabinet submission for an electoral amendment bill? Mr KENNEDY: I cannot answer that because I was not there at the time but I assume they would have been via some form of communication from the minister’s office to the commissioner at the time. Whether that was an email or a letter or something; I do not know. But that is the usual practice when ministers communicate with their agencies. Hon SIMON O’BRIEN: A whole range of things then flow from that. Mr KENNEDY: That would have included, “Please draft a cabinet submission for drafting for a piece of legislation to cover the election commitment.” Hon SIMON O’BRIEN: Can that initial document be produced? Mr KENNEDY: That would be a cabinet submission, so I would have to take advice. Hon SIMON O’BRIEN: Is it a cabinet submission? Mr KENNEDY: It would have been, yes. Hon SIMON O’BRIEN: It strikes me this is prior to a cabinet submission? Mr KENNEDY: Sorry, which document are we talking about now? Hon SIMON O’BRIEN: The initial communication that came to the WAEC — Mr KENNEDY: We can have a look for that. Hon SIMON O’BRIEN: — saying can we look at having a bill drafted and accompanying submission you do, obviously, to get the approval from cabinet. The CHAIR: We will make that question on notice number 1. Hon SIMON O’BRIEN: Thanks very much.

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Hon NICK GOIRAN: There has been talk about there being multiple directions that were provided over the course of this. I appreciate that you will need to take this on notice, but can you take on notice the date of those directions? Mr KENNEDY: Yes. The CHAIR: That will be question on notice number 2. I think, Mr Kennedy, you referred to online disclosures. It might have been you, Mr Gargan. Did online disclosures fall away at some point? Mr KENNEDY: I believe so. That was part of the original election commitment and as I understand it, part of the original submission to draft and at some point cabinet advised us that that was no longer proceeding. Mr GARGAN: That is right. Hon NICK GOIRAN: There was an election commitment to bring in online reporting and there is no clause in the bill currently before the committee that implements that commitment. Mr GARGAN: That is correct, Mr Goiran. This all started with the Labor Party’s election commitments for online disclosure and that moved to quarterly reporting, but the rationale and reasoning for it, I cannot comment on. They were just instructions given to us. Hon NICK GOIRAN: One of the reasons it cannot be is that the Electoral Commission gave advice to the government to say that it is administratively burdensome to have online reporting. I take it that that did not happen. Mr GARGAN: No; definitely not, Mr Goiran. Again, the policy matter is a matter for parliamentarians and government. We just administer the Electoral Act. We have no play in making these kinds of decisions. We are just given instructions and we carry them out best we can and implement the Electoral Act as best we can. Those matters are internal matters for parliamentarians and government. The CHAIR: We move now to a question around the concept of groups, bearing in mind that you are talking to a committee comprising Legislative Councillors who have a fair idea about how the upper house ballot paper works. We wondered if you could just give us an example of a Legislative Council group and how that works in practice. Ms DURHAM: What element of practice—in terms of election return or gifts? The CHAIR: Section 80 of the act defines a group as — Two or more candidates nominated for an election in a region where the relevant number is more than one may, in an approved form and before the hour of nomination, make a claim to the returning officer — (a) to have their names included in a group in the ballot papers to be used in that election; and (b) to have their names included in that group in the order specified in that claim. Groups, of course, are covered by the caps on electoral expenditure. Mr KENNEDY: Essentially, my understanding is that a number of candidates can elect to be, if you like, grouped—put together—on a ballot paper and that then allows, for the purposes of casting your vote on the ballot paper, them to appear above the line as a group and you can then mark that particular box with a “1” to say you wish to vote for that particular group of candidates. It does not necessarily, as I understand, imply that they have the same views or the common political philosophy but they have elected and applied to us in the appropriate form to be a group.

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The CHAIR: That might be their only connection? Mr KENNEDY: Correct. The CHAIR: That group is then covered by the cap on electoral expenditure? Mr KENNEDY: Yes; that is correct, one of the caps. Hon NICK GOIRAN: That cap is $125 000 as I understand it for a group with respect to the Legislative Council. Mr GARGAN: That is a non-party group, Mr Goiran. Hon NICK GOIRAN: A non-party group, but also for a party group you would be limited to $125 000 for a Legislative Council region? Mr GARGAN: Correct. Most of the members here in a political party would be in a party group. The cap is the same for them as it is for a non-party group. Hon NICK GOIRAN: What was the basis upon which $125 000 was chosen as the amount of the cap? Was it on advice from the Electoral Commission to government? Mr GARGAN: No. Mr KENNEDY: No; we did not provide any advice in terms of the numbers that were chosen for the expenditure caps. That, again, came back to us via cabinet decisions. The CHAIR: We turn now to the subject of gifts. You were clearly tuned in this morning to our panel of academics? Mr KENNEDY: Not to all of it but bits and pieces. We did have some other things. The CHAIR: You will be aware that we had some discussion about this this morning, so I put, basically, the same question to you. In Queensland the definition of a gift includes a fund-raising contribution; for example, a ticket to a dinner above $200, regardless of the value of any consideration received. Was a provision like that considered for this bill? Mr KENNEDY: Not to my knowledge, no. The CHAIR: New South Wales has banned the receipt of donations from not only foreign donors but also the tobacco and gambling industries and property developers. We have an amendment on the SNP to that effect. Was that provision considered at all in relation to this bill? Mr KENNEDY: No; not to my knowledge. The CHAIR: The last question about gifts is that the disclosure regime only requires declarations by recipients. Other states, of course, have a donor disclosure process as well, so that you can crosscheck the verification. Has there been any consideration given to that measure? Mr KENNEDY: Not to my knowledge, no. The only observation I make about that is that it would represent an extra administrative burden on us in terms of chasing up that kind of thing. As I think I said before, our principle interest in this legislation is the impact it will have on our staff and on our stakeholders in terms of the parties—the sort of people that Sabrina deals with on a daily basis— and trying to keep things as simple and straight forward for them as it is for us. Mr GARGAN: I think, Madam Chair, a bit of context to it. In New South Wales donors have to declare, but New South Wales has a comprehensive funding and disclosure team of over 30 people. The WA Electoral Commission has two people in the funding and disclosure team. It is also a question of resources, which I think is important to acknowledge.

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Hon NICK GOIRAN: Under the current law of Western Australia, is it the case that there is a limit as to the size of a gift that can be given? Mr KENNEDY: No. Mr GARGAN: No, Mr Goiran, no. Hon NICK GOIRAN: Under this legislation, this amendment bill, would there be any limit as to the amount a gift could be? [2.00 pm] Mr GARGAN: No, there is no cap on donations, Mr Goiran, just on the expenditure during the election campaign. Hon NICK GOIRAN: Under the existing Western Australian law, what is the threshold upon which a gift needs to be declared? Ms DURHAM: The current specified amount is $2 500 and it will change after the next state election. With the current legislation, all gifts have to be recorded and kept by the political party. It is just that for any donations or any amalgamated amounts over $2 500, the details of the donor need to be disclosed in the return. Hon SIMON O’BRIEN: Can I just ask you for some clarification: is there any real difference between a donation and a gift? Ms DURHAM: No, they are the same. Hon NICK GOIRAN: And with the $2 500 threshold for disclosure, that amount will be decreased as a result of this bill to $1 000? Ms DURHAM: Yes. Hon NICK GOIRAN: Is it over the same period of time, that being a financial year? Ms DURHAM: Yes. The proposed bill is anything that is over $1 000 for an amalgamated amount. For example, if someone donated $500 in one quarter and then another $500 in the next quarter, in that quarter their details would be disclosed in that quarterly return. Hon NICK GOIRAN: In that example, it would be in the second quarter that it would be disclosed? Ms DURHAM: Yes, that is what would be expected. Hon NICK GOIRAN: What happens if the first and the second quarter in that example that you gave occur in two different financial years? Ms DURHAM: I do not believe that that would be captured then. Hon COLIN de GRUSSA: Do they disclose the total amount and not just that quarter’s donation in that example? Ms DURHAM: I believe it will be the total amount. Mr KENNEDY: May I add to something that Mr Gargan said about resourcing? It is in the budget documents that were released yesterday. The government did support the commission in terms of its comments about administrative burden, and there were an extra two FTE identified in the budget to support us, which are going specifically to deal with the complexities that are going to arise for us from this legislation if it is passed. The CHAIR: Thanks for that clarification. Hon NICK GOIRAN: What are the complexities?

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Mr KENNEDY: Just in terms of the additional burden that it is going to place on reporting parties and organisations that are going to be reporting. As Mr Gargan said, there are only two people in the commission at the moment in that particular area. We envisage that particularly the foreign donation and the expenditure cap issues will raise a lot more questions and queries from organisations, so we approached government and said that we thought we needed more resources from that point of view, in terms of being able to support parties and others who are asking questions about that sort of thing. Mr GARGAN: There are 15 registered political parties in Western Australia. Many of them are minor parties who do not have a big support network. If this legislation is passed, they will need a lot of help in doing quarterly returns instead of an annual return. That is why we need extra people to help with that if the legislation is passed. Hon PIERRE YANG: Using the local council election in Western Australia as an example, I understand that a donor and a recipient of a donation in a local council election will both have to disclose that a certain donation has been made. Of course, in that scenario the local council in question is the one administering all the records and the enforcement, so to speak. In terms of the WAEC’s role, if there is a requirement for both the recipient and the donor to report, would that not be a case where the Electoral Commission says, “Well, the political party will have to provide the information to the Electoral Commission and record that certain donations have been made”? Would it not be on the political party or the candidate in question to chase up the donor’s signed disclosure document and for that to be presented to the WAEC? The administrative burden would not necessarily be on the commission but on the political parties. Mr KENNEDY: We are talking about donor disclosure at a state level. I would think the burden so much for us would come, if local government is anything to go by, from the questions that we get from people about, “Is this a gift? Is this a donation? I am doing this for this person.” From what I understand from the local government sector, it takes up a lot of time of the local governments in having to sift their way through answering those sorts of questions. That is where the administrative burden would be. In terms of making the disclosure, yes, you are right; the onus would be on the individual, and if they did not do it, they would cop the consequences if it is later discovered. Hon PIERRE YANG: That goes back to Mr Gargan’s comment before my question. The CHAIR: Now that we have segued to the next subject, which is quarterly returns, you have talked about the administrative issues particularly for smaller parties. We note that other states have six- monthly returns. Was that considered in relation to Western Australia? Mr GARGAN: Again, not to my knowledge. The government made that decision; cabinet made that decision. We were just told that this is a direction. We were asked to basically get on with it. The CHAIR: Do you have a sense of how that might work next year, should this bill be passed, with the election on 13 March? Will there be a reporting date on 31 March? Mr GARGAN: How the current bill is drafted is that if this legislation is passed, the political parties will have to give us two quarterly returns by 15 January. That is going to be very tight for all the political parties. That is in the current bill. The transitional arrangements are that if the bill is passed, the political parties will have to give two quarterly returns, starting from 1 July this year, to the Electoral Commission by 15 January. I will double-check that. It is at the back of the bill in the transitional arrangements. It is by 15 January if this bill is passed. That is in section 175ZH. The political parties will have to give us two quarterly returns. Hon SIMON O’BRIEN: Is there any penalty or offence if they fail to do that? Mr GARGAN: Yes, there is.

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Hon SIMON O’BRIEN: So this is prospectively making an offence for something that is currently not an offence? Mr KENNEDY: No, it has always been an offence. Mr GARGAN: Not to do an annual return is an offence, Mr O’Brien, but the annual return, of course, is an annual return. The parties get it into us by the end of November, is it, Sabrina? Ms DURHAM: It is due by 30 November. Hon SIMON O’BRIEN: They do that anyway. That is the current situation. But what is the retrospective element? Mr KENNEDY: If they fail to do that currently, there is a penalty. Hon SIMON O’BRIEN: Sure. That is understood. That is the existing law. But what about the quarterly reports that you are talking about? Are they going to have to be done retrospectively as well? Mr GARGAN: If this bill is passed, Mr O’Brien, by 15 January the political parties will have to give us two quarterly returns backdated from 1 July this year. Mr KENNEDY: All I think we would be doing is that those parties would be gathering that information currently, as they normally would, but instead of having until November 2021 to put that information in, we will be asking them for their first six months’ data by 15 January 2021. Hon SIMON O’BRIEN: Right. Understood. The CHAIR: So it is much more like a shifted reporting date than a retrospective requirement with a penalty. Mr KENNEDY: Yes. Hon SIMON O’BRIEN: With the exception, of course, that the declaration point is to be $1 000 rather than $2 500. Mr KENNEDY: Yes. That becomes an issue for them in terms of — Hon SIMON O’BRIEN: Potentially. Mr KENNEDY: —having to retrospectively cast back and think, “Right; we’ve only been collecting stuff up to $2 500. Now we’re going to have to go back to $1 000.” Hon SIMON O’BRIEN: For the purposes of the discussion, for some of those minor parties it will probably be nil returns anyway. I am guessing. Mr KENNEDY: Possibly. Hon SIMON O’BRIEN: Quite possibly. Whereas more established parties with staff will presumably have got the matters in hand. That leads me to ask, as I think you alluded to it earlier: I would have thought that if you are going to have more reporting, why not just make it a simple online system, where a donation is received and then within a certain period of time it is updated as they occur? Surely that would provide much greater efficiency. Mr KENNEDY: Provided you give me the time to build the online system. I get very nervous when people talk about online systems. They have a history of falling over and all sorts of things going wrong. Mr GARGAN: For what it is worth, Mr O’Brien, the online system is in Queensland at the moment and even the major political parties struggle with it. They have seven days to pump the information into a machine. Some of the minor parties and other people who are involved in elections and politics struggle with it.

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Hon SIMON O’BRIEN: So we are back to good old-fashioned paper returns, are we? Mr GARGAN: That is what we have at the moment, Mr O’Brien. Hon SIMON O’BRIEN: As a traditionalist, I think that is great! Hon NICK GOIRAN: Further to this line of questioning about the transitional provisions, clause 24 of the bill inserts section 175ZH. I am particularly interested in section 175ZH(4)(b), which states — the returns required under those provisions in relation to that quarter must be lodged before the end of 15 January 2021 instead of within 10 business days after the end of that quarter. What is the difference between 15 January 2021 and the 10 business days after the end of the quarter? Mr GARGAN: I am not a lawyer myself, but I think, basically, when you look at public holidays and all that stuff, it just works out on 15 January. That is how it works out. When you factor in public holidays, the date is 15 January. Hon NICK GOIRAN: So 15 January 2021 is indeed 10 business days after the end of the quarter. Mr GARGAN: That is right. It was the draftsperson — Hon NICK GOIRAN: So it is a little nonsensical for the drafters, with all due respect to them, to refer to something being provided before the end of 15 January instead of within 10 business days, when it is not instead of at all; it is exactly the same thing. This was put in by the drafters and not on the advice of the Electoral Commission. Mr GARGAN: No. As you say, it works out at 10 business days after that. That is when we have to receive those two quarterly returns. Mr KENNEDY: I do not want to speak for the Parliamentary Counsel’s Office, but I suspect they were looking at various dates and just trying to be as practical and sensible as they could be in terms of allowing the parties time to adjust to a new system and get that in. It also helps us in terms of the fact that by 15 January, we are bearing down on a state election. We can get that matter dealt with and move on to other things. Just going back to Mr O’Brien’s comments about penalties and things, I understand that I have some discretion in terms of parties, and particularly minor parties, who might not meet deadlines for submitting returns and things. Correct me if I am wrong, Mr Gargan, but I understand that in the past we have always taken an educative approach rather than penalising parties that are not able to get their information in on time. We would rather work with them to find out what is holding them up and what might be the problem—those sorts of things. Hon SIMON O’BRIEN: As that point has been raised, I will address it now. It occurred to me that in translating the black and white proposed law into the real world, I could see that there are all sorts of players in elections and they have greater or lesser degrees of expertise and professionalism in terms of campaign discipline, in terms of expertise and in understanding of laws. Let us face it: for some, it is an occasional or even a once-in-a-lifetime experience. When we are talking about the sort of matters that are contemplated under this changed regime, I could foresee a range of “gotcha” moments arising, to the distress of some participants, particularly if you have got, dare I say it, some small-minded people out there who try to say, “Aha! You haven’t declared. You’re $100 over”, or whatever it is. I am going to ask you if you could comment a little further, but I am greatly reassured with what you have just said—that you have some discretion. Just because someone has failed, maybe through incompetence but probably not through criminal intent, you can give them a reminder or an admonition rather than resorting to referring a prosecution brief to the DPP. Could you discuss that a little for us? [2.15 pm]

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Mr KENNEDY: I am only going on my recent experience in terms of some other matters that have proceeded to prosecutions or not. It seems that the State Solicitor’s Office and the DPP work pretty closely with me in determining whether something is likely to be in the public interest and, therefore, worth pursuing through to a prosecution. Certainly my view is that if it appears and the legal advice supports the case that there is a prima facie case of someone really seriously attempting to pervert the electoral system, then obviously I am going to go through with that. But in cases of an honest mistake, I am prepared to be a bit more lenient, I suppose, particularly given that if this bill goes through, we will all be learning the new system and the hooks and things. I am consistently told by various members of my team who have been there much longer than I have that they are continually surprised by things that come up in elections. They would think they had seen it all after 20 or 30 years, but things keep popping up that they never expected. Hon SIMON O’BRIEN: I think you could share a coffee or two with the state directors of a few major political parties and swap war stories about this. That is one mischief that I think as legislators we prefer to avoid being created. If you have someone here in West Perth or somewhere trying to run a campaign with all the dynamics that are involved and you have some over-enthusiastic campaign offsider in, dare I say, a regional area, that is not suddenly going to result in some attempts to bankrupt political party headquarters or have state directors or leaders of parties thrown into jail or anything like that. Mr KENNEDY: Yes, I would like to think that commonsense would prevail when we are looking at those sorts of matters if they came to me. The CHAIR: I do have two areas of questioning, which really is seeking your advice about whether certain provisions were considered for inclusion in the Western Australian bill. I think I can anticipate how you will respond; nevertheless, let us just get this on the record. Having considered other jurisdictions, the first is the anti-avoidance measures in the commonwealth, New South Wales, Queensland and South Australia. You would be familiar with those. Can we ask whether such a measure was considered for the bill? Mr KENNEDY: Not to my knowledge, no. The CHAIR: The second is the South Australian provision for the voiding of an election result should the Court of Disputed Returns find that on a balance of a probability the result of an election had been affected by a breach. Similarly, was that considered in Western Australia? Mr KENNEDY: Not that I am aware, no. The CHAIR: My final question in the formal questions we have prepared to ask you—then I will ask my colleagues whether they have follow-up questions to raise with you—is about the commencement date. The date of 1 October 2020 is specified in the bill; we have clearly missed that commencement date. Is it the intention to retain that commencement date and apply the provisions retrospectively? Mr KENNEDY: At this stage, yes. We have had no instructions otherwise. It will prove difficult if that is the case. I know there have been suggestions from other parties that it might be changed into next year or the start of next financial year, for example. From our point of view, that would allow us more time to be prepared for it. But as far as I am aware, we have had no other instructions about not changing that. Hon COLIN de GRUSSA: Just on that date, is there a point of no return, I guess? Is there a particular date at which it would become impractically difficult to implement for the Electoral Commission? Mr GARGAN: The date of 1 October was tight. We have 15 or 16 registered parties. It was going to be a lot of hard work for the Electoral Commission and meeting all the party secretaries to talk about

Legislation Friday, 9 October 2020 — Session Two Page 14 the new world. We have missed that deadline. Whatever the Parliament determines is whatever the Parliament determines, but yes, it will be tight. The CHAIR: Tight but doable. Mr GARGAN: Whatever the legislation is, we will do our best. Mr KENNEDY: Whatever the Parliament tells me I need to do, I will do to the best of our ability. The CHAIR: That brings us to the end of the formal questions. Hon Simon O’Brien, do you have some follow-up questions? Hon SIMON O’BRIEN: Yes, I do have some questions around all the issues that we are talking about. With your indulgence, Madam Chair, I want to preface my remarks by saying that in an association as a client of the commission for over 30 years I have no doubt that the traditions of the commissioner and his staff responding to whatever systems are thrown at them by the legislature are tackled in a very professional, dedicated, can-do manner. Nothing I have to say is any reflection to the contrary. What I want to explore though is that we have had a lot of discussion in submissions and others about this “transparency” word. The word “transparency” is anything but transparent in my view. You have been doing these transparent things and all the publications that the commission produces, and there are several of them every year. One is the political finance report—I will come to that in a moment—and then there is your annual report and all the various election reports and so on. I assure you that on behalf of my colleagues there are some keen consumers of those documents and what is contained within them. But part of that is about disclosure of donations. “Does it serve any good?” is one of the questions that is going around in legislators’ minds as we contemplate this bill. You have been collecting returns from political parties for a very long time. Mr KENNEDY: Since we were required to. Hon SIMON O’BRIEN: Since you were required to. What has been the net gain to the community from that activity? Mr KENNEDY: Sorry to throw it back at you, but I assume it is the transparency that the community can see what those disclosures are, which they previously would not be — Hon SIMON O’BRIEN: It is the raw information that this person donated X to so and so. Mr KENNEDY: Yes. Hon SIMON O’BRIEN: I think you have some copies of this in front of you in that political folder. I want to go to the political finance report for the 2003–04 year, just by way of a simple example. There are several pages in there that are taken from the appendices to that report. I am going to appendix 4, on page 12 in the additional document, headed “Gifts $1,600 or Greater Received by Political Parties”. It sets out in one column the names of political parties and donors and amounts received in that financial year that are over the disclosure amount, which was $1 600 I am guessing back in that day. Mr KENNEDY: Yes, I assume so. Hon SIMON O’BRIEN: We go through the first donations for the Australian Labor Party from British American Tobacco and Burswood Resort Casino and so on. Let us pick one at random. What is the largest individual donation there? Can you identify it? Mr KENNEDY: That would be the $30 000. Hon SIMON O’BRIEN: Who is that from? Mr KENNEDY: From a company known as Mineralogy Pty Ltd.

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Hon SIMON O’BRIEN: Mineralogy Pty Ltd—I have heard that somewhere. That is interesting. What do we know about that donation? Is it only what is shown on that page? Mr KENNEDY: Yes. Sorry, no? Ms DURHAM: Not quite. Mr KENNEDY: Okay, what do we know? Ms DURHAM: The tables are a summary of the returns that are provided to the Electoral Commission. The actual form requires them to provide a date, the address of the donor and the amount. This just summarises it by condensing it just to the name and the amount that was given. Hon SIMON O’BRIEN: But the addresses and so on are not published are they? Ms DURHAM: No, you can view the actual return online. Hon SIMON O’BRIEN: I see. If someone was of mind, they could drill down a little further, but not much. But that is all we really know, is it not, that $30 000 was given by Mineralogy Pty Ltd to the ALP somewhere in that fin year. Mr KENNEDY: We have the particular date. Hon SIMON O’BRIEN: And we have a particular date. There is a whole range of other donations there as well. I am just wondering how that helps democracy in Western Australia. We do not know anything more about it. Mr KENNEDY: I cannot speak for Western Australia, but I assume that what that provides is an opportunity for someone to then take that matter further and ask the Labor Party or any of those parties listed there what was the nature of that donation and why they think they got that donation. I do not know. Hon SIMON O’BRIEN: It could be that it is a benevolent paper billionaire from Queensland who suddenly decides he wants to give some money away in Western Australia. It might have something to do with something else—who knows. It is interesting for its own sake and for political groupies. But we have this argument raging as to whether or not it actually achieves anything. Can I just ask— again, it is not up to you to demonstrate the worth or otherwise of what you are doing, you are doing very well—are any of these disclosures ever taken any further that you are aware of? Is there anything further to be done with them? Mr KENNEDY: Taken any further in what sense? Hon SIMON O’BRIEN: Any further examination by any entity? Mr KENNEDY: Not that I am aware of. Hon SIMON O’BRIEN: It is just in the public domain? Mr KENNEDY: Our role is to receive this information. I am not even sure whether we are required to publish it or not, but we choose to publish it. Whether anyone then does anything further with it in terms of long-term analysis or individual analysis is up to those individuals. Hon SIMON O’BRIEN: Right. Mr GARGAN: Just to add to that, the only people who take a real interest in this stuff, as Sabrina says, at the end of the year we publish on our website this stuff. It is usually journalists, the press, who look at this stuff. Hon SIMON O’BRIEN: Politicians. Mr GARGAN: More than anyone.

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Hon SIMON O’BRIEN: They will have a good look. Of course, what we do not see, obviously, is where people are up to no good. Perhaps it happens; we hear about it happening in other jurisdictions such as New South Wales and other places from time to time, where we have the sorts of gifts given that are most certainly not disclosed. Are there any efforts made by the commission or anyone else in Western Australia in an official capacity to investigate undisclosed donations? Mr KENNEDY: I do not believe that I or the commission has any power under the current legislation to do that. If someone were to refer an allegation of such a nature to me, I would think, depending on the severity of it, I would be obliged to refer it to probably the CCC. I do not know if even the police would have any particular offence they might be able to connect it with. Hon SIMON O’BRIEN: Thanks for indulging me, Madam Chair. I thought it was important to tease out those few elements because it does raise the possibility that what happens if it is the sort of thing that everyone would be concerned about—that is, an improper undisclosed donation attempted to influence maybe the actions of government or something in favour of the donor and how do we respond to all of that? I notice that we are going to an awful lot of trouble administratively for a whole lot of different people, including your commission officers, to do the things that people doing the right thing are doing by declaring their income. Mr KENNEDY: The only other observation I would make—it is really just something that I have observed—is that whenever any legislation, but particularly electoral legislation, whether it is state or local government, is introduced, people seem to enjoy finding ways to get around the rules as soon as they are made. It goes further to what some of your witnesses this morning were saying: no system is perfect and someone will always try to game the system if they can. Hon SIMON O’BRIEN: I think that is a very fair comment and no doubt people are putting their minds to it already. Let me conclude with one hypothetical example of that. If part of this bill is to stop third parties from trying to influence elections by spending lots of money during election campaigns and so they are restricted to $2 million each, what if that person had umpteen different companies and got each of them to spend $2 million. Would they be restrained then by virtue of the common ownership under the proposed legislation, or could they get around it that way? The CHAIR: I think this might be the anti-avoidance measures we were talking about. Ms DURHAM: Under the act, a body corporate and their associated entities is considered one entity. Mr KENNEDY: Yes, so we would have to presumably establish a link between those various companies all coming back to one company in order to achieve that. [2.30 pm] Ms DURHAM: It is section 175SA1. Subsidiaries of the same body corporate presumably are all captured as one other person who is not a candidate for a political party or Legislative Council group. Mr GARGAN: Again, section 175A(5) of the Electoral Act deals with corporations and all that kind of stuff. Again, you would need a corporations lawyer and so on to dig into that, but it is there. Hon NICK GOIRAN: There is a supplementary notice paper 100 before the Legislative Council; as far as I know, the latest one is issue 2. It consists of some 12 amendments being proposed by Hon Alison Xamon. Has the Electoral Commission provided any advice to government in respect of any of those 12 amendments? Mr KENNEDY: No.

1 Witness correction: 175A(5)

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Hon NICK GOIRAN: Have you considered the 12 amendments and how they might have any impact on the bill? Mr GARGAN: We have looked at them, but again, that is a policy matter. I think those amendments deal with banning certain people from making donations and so on and so forth, but that is a political policy decision. I think in New South Wales, they currently have a ban on those particular people making those donations, but it is a matter for the Parliament, not for us. Mr KENNEDY: My only consideration of the amendments is the potential nightmare it creates for my staff in terms of enforcing it. Hon NICK GOIRAN: I think you mentioned that you were recently provided resourcing for an extra two FTE staff. Have those two FTE staff been recruited? Mr KENNEDY: That is subject to the passage of the legislation, so we do not get funding until the legislation passes. Hon NICK GOIRAN: This particular bill? Mr KENNEDY: Yes. Hon NICK GOIRAN: Would the amendment — Mr KENNEDY: Treasury is not that generous! Hon NICK GOIRAN: Would the amendments on the notice paper have any impact upon that staffing requirement? Mr KENNEDY: I would think that those amendments would require some additional resources. Mr GARGAN: It also requires the Electoral Commissioner to make some determinations on who can donate and who cannot donate and all that kind of stuff. Again, that brings us into a policy space. Hon NICK GOIRAN: Would you be able to take on notice and advise the committee what would be the resourcing implications in the event that the amendments were agreed to? Mr KENNEDY: Yes, we can have a rough go at that. The CHAIR: That will be question on notice 3. Hon NICK GOIRAN: Part of the documentation that came with the Electoral Amendment Bill 2020 was an explanatory memorandum. Was the Electoral Commission consulted or involved in any way in the preparation of the explanatory memorandum? Mr GARGAN: I helped draft the explanatory memorandum, the administration side of it, trying to explain it as simply as I could for the stakeholders out there who are interested in it. Hon NICK GOIRAN: The first paragraph of that explanatory memorandum, in the second sentence, says that it contains provisions that will give effect to the government’s clear election commitments to improve disclosure laws around political donations. It goes on to reflect some other things that the bill is said to be doing. I seem to recall hearing from you earlier that one of the government’s election commitments was to introduce online reporting and that that is not happening with the bill. Why is it then that the explanatory memorandum says that this bill is giving effect to the government’s clear election commitments to improve disclosure laws around political donations? Mr GARGAN: Certain policy and political matters in this explanatory memorandum were handled by other people; I just handled the administration stuff, trying to explain simply about the administration stuff in here. The online disclosure stuff that I tried to explain earlier, that was a government commitment. The government decided not to proceed with that; why they decided that, I have no idea.

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Hon NICK GOIRAN: I think you said earlier that you had been involved in the preparation of the explanatory memorandum, so this particular sentence in the first paragraph that I am taking issue with, were you involved in that particular sentence, or was that dealt with by other people? Mr GARGAN: The minister’s office, and I also helped them do the administration side of it. Hon NICK GOIRAN: Okay, but you would not endorse the second sentence, given the evidence you gave earlier? Mr GARGAN: Mr Goiran, matters of transparency and donations, that is a matter for parliamentarians, not for me. Hon NICK GOIRAN: I will leave you in peace on that. With respect to clauses 4, 5 and 6, it seems that these are drafting or tidy-up matters. Curiously, some of these matters have been hanging around since 1967 or as recent, dare I say it—and I use the word “recent” very loosely—as 2007. Is it simply the case that despite the fact that presumably the Electoral Act has been amended on several occasions during the preceding years, no-one has picked these things up, and it has now been picked up for the first time? Mr GARGAN: Mr Goiran, it is remarkable. As you say, the Electoral Act has been there since 1907. No matter how many times you amend it, people pick up stuff that no-one has seen since 30 years ago. That is the best answer I can give you. Mr KENNEDY: I think it was probably a cheeky play by the commission to try to slip some amendments in that we realised had not been dealt with and needed to be. Hon SIMON O’BRIEN: The only good bits in the bill! Hon NICK GOIRAN: Are we saying that clauses 4, 5 and 6 have been introduced into the bill on the advice of the Electoral Commission? Mr GARGAN: I think they were picked up by parliamentary counsel just to say, “Look, if you’re putting this bill through, we’ve picked this up, do you want to put it through?” We went, “Yeah, put it through.” Hon NICK GOIRAN: With respect to clause 7 of the bill, curiously it is amending the title or the heading of part 6. The only thing that it seems to actually be doing is deleting the words “disclosure of”, so at the moment the heading reads “Electoral funding and disclosure of gifts, income and expenditure” and will now read “Electoral funding and gifts, income and expenditure”. What is the significance of or necessity for deleting the words “disclosure of”? Mr GARGAN: That again was a recommendation from parliamentary counsel, and we saw no reason to say no. Hon NICK GOIRAN: So nothing much turns on it? Mr KENNEDY: It does not seem to. Mr GARGAN: No, Mr Goiran, definitely not. Hon NICK GOIRAN: The reason it particularly piques my curiosity is that presumably one of the purposes of this bill is supposedly to improve disclosure laws, so it seems strange that we would be deleting the words “disclosure of”. Mr GARGAN: Yes. Hon NICK GOIRAN: I accept that this is merely a heading, so as I say, nothing much turns on it, but I am just trying to understand the rationale behind the recommendation. Mr GARGAN: Yes, again, I did not cross-interrogate the parliamentary counsel personally.

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Mr KENNEDY: Again, I do not want to put words in parliamentary counsel’s mouth, but I am wondering whether it was taken out because it might—in matters of expenditure, we are now talking about caps, which is nothing to do with disclosure, so as it currently reads, it is disclosure of gifts, income and expenditure, whereas now “expenditure” includes matters other than disclosure of expenditure; it also includes expenditure caps. But I am only guessing on the read right in front of me. Hon NICK GOIRAN: If I can turn to the issue of 1 October. The selection of 1 October as the commencement date, which has been missed—that was a decision of government to use 1 October as the starting point? Mr GARGAN: Yes. Hon NICK GOIRAN: To the extent that you can, was it the intention that 1 October be selected because it would be a date after the passage of the bill? Mr KENNEDY: I am trying to remember. Hon NICK GOIRAN: In other words, that it was intended to be a prospective date rather than a retrospective one. Mr KENNEDY: Were they originally planning for the bill to be passed prior to 1 October; is that why 1 October was chosen? I cannot remember why. Mr GARGAN: You would expect the bill to be passed by 1 October. The 1 October date fascinated me, too, because of the other jurisdictions that have expenditure caps, South Australia starts its expenditure cap on 1 July, before the election in March. New South Wales started on 1 October for the March election, but again, why they decided on 1 October, I would have to second-guess myself on why they decided that. That is the only thing I could think of—maybe they just looked at other jurisdictions and landed on that one. Hon NICK GOIRAN: So if the bill were to pass at this time, the significance of the date of 1 October— apart from the need to provide quarterly returns, what else turns on the significance of 1 October? I take it that whether you had the date as 1 October or, for example, 1 January, you would still be capped at $125 000 per candidate. [2.40 pm] Mr GARGAN: I am just trying to think of it through the eyes of a party secretary or agent. They want certainty that legislation has been passed and then they know that from 1 October until polling day, they can spend this. Hon NICK GOIRAN: But if it were 1 January, which would be a prospective date from today, which is why I use it; we are at 9 October, so I am just thinking of a date, if it was 1 January rather than 1 October, nothing would change in the sense of you still need to disclose any donations of $1 000 or more going back to 1 July. Mr KENNEDY: Yes. Hon NICK GOIRAN: Nothing would change in the sense that you cannot spend more than $125 000 per district. Mr KENNEDY: The only difference is you would not include expenditure prior to 1 January— between 1 October and 1 January. Hon NICK GOIRAN: So the $125 000 cap on expenditure for, let us say for instance, an independent who is running for a particular district, they would be able to spend $125 000 from 1 January until 13 March. If they happen to spend $500 000 before 1 January, they would be entitled to do that.

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Mr KENNEDY: Yes. Mr GARGAN: I am not sure about that. Ms DURHAM: The way it works is that if it is expenditure that is incurred during the election period, the election period is the current act, but it is the capped expenditure period under the proposed bill. For example, if someone pays for an ad on 1 October, but that ad is used during the capped expenditure period, whatever time frame that is, it is included and captured and has to be disclosed, and it counts towards that cap. Hon NICK GOIRAN: Sure, but let us say for instance, again, an independent candidate has distributed brochures in a seat and district and they have done that in fact prior to 1 October, and maybe that has cost them $500 000. They do not use that brochure ever again. They distribute a different kind of brochure from 1 January. That expenditure with regard to the first brochure is not included in the $125 000 cap? Ms DURHAM: No, because it does not fall under the capped expenditure period. Hon NICK GOIRAN: Hence the significance of 1 October; that is the starting date—the starter’s gun—for the capped expenditure period. Ms DURHAM: Correct. Hon NICK GOIRAN: This is more comment than question. I would imagine there is probably not a lot of difference in terms of capped expenditure, whether it is going to be 1 October or 1 January, but it seems to me the thing that would have the most significance is the quarterly returning element. Mr KENNEDY: Yes, I think so. Hon NICK GOIRAN: If the date was 1 January rather than 1 October, what impact would that have on the transitional clause that we discussed earlier with the 10 business days and 15 January? Presumably, the transitional period would fall away and you would not need to hand in your quarterly return until 10 days after 1 April? Ms DURHAM: The capped expenditure period for electoral expenditure is an election return separate to gifts. The transitional period applies to the quarterly reporting, which is the disclosure of gifts. Hon NICK GOIRAN: The quarterly returns are linked to 1 October or not? Ms DURHAM: No. Mr KENNEDY: One deals with gifts and one deals with expenditure. Hon NICK GOIRAN: So, 1 October deals only with the capped expenditure? [2.45 pm] Mr GARGAN: The capped expenditure, yes. Hon NICK GOIRAN: That is helpful. The CHAIR: That is a useful clarity, I think. Hon COLIN de GRUSSA: Just on the cap provisions within the bill, I am just trying to get an understanding of the development of those, I guess, and what involvement the Electoral Commission may have had in determining the cap amounts, the calculations, formulas et cetera. Were you consulted on that or was it a direction: “This is how it is going to work”? Mr GARGAN: This is how it is going to work.

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Mr KENNEDY: We were advised that cabinet had decided on particular amounts and that information was passed to PCO so that they could make the drafting amendments. Hon COLIN de GRUSSA: So in terms of calculation and all that sort of thing, the Electoral Commission had no involvement at all in determining that? Mr GARGAN: No. Hon COLIN de GRUSSA: That obviously then includes those non-party groups as well—the $2 million cap? Mr KENNEDY: Yes, any of the amounts. Hon COLIN de GRUSSA: Nothing decided by—okay. Hon SIMON O’BRIEN: I want to refer to tabled paper 4104 entitled “Explanation of the justification of the expenditure caps in the Electoral Amendment Bill 2020”. Is that a document you are familiar with or have seen? Mr KENNEDY: Yes—familiar with it when it was tabled, yes. Mr GARGAN: When it was tabled. Hon SIMON O’BRIEN: My question really is: was the commission involved in the drafting of this? Was a draft run past you for comment or anything? Mr KENNEDY: No. Hon SIMON O’BRIEN: So you had nothing to do with it? Mr KENNEDY: No. We became aware of it when it was tabled, or perhaps just prior to it being tabled. Hon SIMON O’BRIEN: Relating to the matter my good friend Hon Colin de Grussa just asked, I think you mentioned that the parameters—the amounts of $125 000 for this and $2 million for that— were delivered possibly on tablets from on high from cabinet and you then conveyed those to PCO for the ongoing drafting of the bill. Mr KENNEDY: That is my recollection. I cannot remember whether it might have been direct to PCO and then they advised us, but either way we were not involved. Hon SIMON O’BRIEN: I am just wondering if you could indicate what date—you might have to take this on notice—that information was conveyed either through you or cc-ed to you to PCO, please. Mr KENNEDY: Sure; we would have to take it on notice. The CHAIR: That is question on notice 3. Hon NICK GOIRAN: My question is in regard to the disclosure requirements and the threshold of $1 000 that would begin from 1 July 2020. My question to the witnesses is: in which clause of the bill do I find that 1 July 2020 is the starting point? Mr GARGAN: I think if you go to those transitional arrangements too, 175ZH — Hon NICK GOIRAN: Section 175ZH(4)(a)? Mr GARGAN: The references in those provisions to a quarter include the quarter beginning on 1 July. Hon NICK GOIRAN: I assume it is clause 24 inserting section 175ZH(4)(a), which is saying that where we see in section 12 of the act, references to the quarters begin on 1 July 2020. If there is a view that such matters should be prospective rather than retrospective, it is the transitional provision in clause 24 on page 21, line 30 that needs amending. If you want it to be prospective rather than retrospective, that is the place in the bill where it needs to be done.

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[2.50 pm] Mr GARGAN: Again, Mr Goiran, as I said to you, the 1 October stuff on the quarterly stuff, it was all going to be tight. This makes it super tight, particularly for the minor parties. Hon NICK GOIRAN: Yes. Hon PIERRE YANG: Just on that point — Mr KENNEDY: Sorry. It may well be in clause 8 where they define “quarter”. Hon NICK GOIRAN: Clause 8 is amending section 175 of the act and does insert a definition of “quarter”. Mr KENNEDY: Yes. Hon NICK GOIRAN: But it is not clear from that particular provision that that is requiring $1 000 or more gifts and donations to be declared from 1 July 2020. It appears that it might be clause 24 that does that. Mr GARGAN: Yes, clause 24. The CHAIR: Does that answer your question, Hon Nick Goiran? Hon NICK GOIRAN: I think so. I think we have worked it out between us. Hon PIERRE YANG: I have a question on that point. Mr Gargan, you mentioned it is going to be tight if we start from 1 October. Are you able to elaborate on how tight and why that is going to be tight? What kind of task will be involved? Mr GARGAN: I think, Mr Yang, the answer to your question is the political parties and the party secretaries in particular who are responsible for doing the return, at the minute they have to do one annual return. Now they are going to have to do four returns. For some of the big parties who have got staff who help in that matter, it is not as bad, but for the minor parties—my colleague who deals with this, we have had a chat about this—some of them struggle to do an annual return. Now they are going to have to do quarterly returns, so it means we will be literally on the phone to them briefing them as best we can to make sure they get their return in, because this legislation will apply to all parties regardless of the size. Hon PIERRE YANG: So, hypothetically speaking, let us say the bill is passed before the last sitting day of this term of Parliament, which will be late November. The commission would have a few weeks to get the information out to all the political parties through their secretaries or directors and then they will have to provide their first true quarterly returns by 15 January according to the transition clause, but that does not affect their ability to comply with the spending cap, does it? Mr GARGAN: No; they are different matters. Hon PIERRE YANG: That is right, but the spending cap starts from 1 October, and that is $8.125 million if I recall that correctly from Mr O’Brien earlier in the hearing, but that does not affect their ability. So the issue of being tight does not really come into question—1 October to the election day. Mr GARGAN: I think we were talking about more the quarterly reporting than the expenditure caps. Currently, the political parties at the moment are getting ready to give us an annual return, which is due by 30 November. At the moment, Sabrina is liaising with the 15 or 16 political parties to get that return in. Those parties will also have to be recording their donations from 1 July this year for those two quarterly returns which will be due on 15 January. For some of those smaller parties, getting all that information to us on time could be problematic.

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Hon PIERRE YANG: I see; okay. Hon COLIN de GRUSSA: And the donation limits have changed as well in that context, so they may have to go back through records to try to identify all that. Mr GARGAN: That is correct. Hon COLIN de GRUSSA: So there is a workload there. Mr GARGAN: All of a sudden, it is from $2 500 down to $1 000. Hon PIERRE YANG: Can I finish with a final question? If the starting date for the expenditure cap is set retrospectively to 1 October, the commission would not have any issue with that in terms of the practical implementation of the requirements of the act if the bill is passed? Mr GARGAN: The only thing I could offer on that would be that if political parties are spending money at the moment on the election campaign in good faith with how the Electoral Act is currently drafted and then the bill is passed later and 1 October is retrospective and they have already spent lots of money in the current environment, I am not sure if it is a problem for them. Hon PIERRE YANG: You are not sure it is a problem? Mr GARGAN: In the sense that the election is in March. Political parties at the minute may be spending money—I have no idea—and they are spending the money based on the current Electoral Act. If the Electoral Amendment Bill is passed in the next few weeks and it is retrospective to 1 October, I am not sure if it may affect parties who have already spent money without an expenditure cap. Hon NICK GOIRAN: They would be spending money at the moment, today, presumably. Those who are active would be spending money today in circumstances where the current law says one thing and there is a bill before the Parliament which suggests another thing. Hon PIERRE YANG: And the same people have been contacted by the committee about this inquiry as well, so they are aware of that. But, anyhow, that was not what I was asking; I was asking, from the commission’s perspective, whether that would make a difference, but I think you have answered that. Hon SIMON O’BRIEN: Again coming back to a transparency issue, is the state electoral roll the same as the commonwealth electoral roll? Mr KENNEDY: No; different eligibility requirements. Hon SIMON O’BRIEN: So they are completely separate identities. Are they in any way capable of being referenced against each other? Mr KENNEDY: We currently have what is called a joint roll agreement with the Australian Electoral Commission, so they provide us with information and updates which we then feed into our state roll. But the two documents would be very different because of the different legislative requirements of eligibility and different requirements around people being silent electors and that sort of thing. Hon SIMON O’BRIEN: But they would very substantially be the same people, would they not? Mr KENNEDY: Yes, I would think so. Hon SIMON O’BRIEN: In terms of verification of those details, I do not know what the commonwealth do, but from time to time we might send out letters to new electors on the roll welcoming them to the electoral roll and sometimes they come back “not known at this address” or perhaps an enthusiastic electorate officer might drive past and see it is an unoccupied building

Legislation Friday, 9 October 2020 — Session Two Page 24 or a vacant block or someone might doorknock and there is no such person as we have been notified on the roll. I am not sure how that happens. There is possibly a logical explanation in some cases, but does that come to your attention very often and how do you check up on it? Mr KENNEDY: No; I cannot say it comes to my attention that often and certainly not since I have been in the role. What comes more to my attention actually is people complaining about getting letters from members of Parliament welcoming them to the electorate and birthday cards and things and “How did they get my details?” and that sort of thing, so we do have to explain the legislative arrangements. Hon SIMON O’BRIEN: Sorry about that! Mr KENNEDY: It is fine; we have a very simple answer to it, which is that the Parliament allows that to happen. Hon COLIN de GRUSSA: You will have to take the Electoral Commission’s number off the letters, Simon! Mr KENNEDY: We do some I suppose what we call roll cleansing when we get that information in from the commonwealth and we do identify a small number of discrepancies. The other issue is that a lot of the commonwealth information now under the joint roll agreement is coming not actually via people. It is under the provisions of the automatic enrolment provisions that were introduced a few years ago. It comes from government data—so, Centrelink data and that sort of thing—and the AEC uses that information and can harvest that information in terms of addresses and that sort of thing. So whether there are some discrepancies there or whether it is just the case that someone moves the day after—I guess what I am saying is that they may not have directly applied to enrol; their information has been given via the ATO or via the — [3.00 pm] Hon SIMON O’BRIEN: I thought you had to apply to be on the electoral roll. Mr KENNEDY: No. Under the automatic enrolment, the commonwealth can basically use some of the data they hold from sources like the ATO and the AEC to automatically enrol you, so you will be placed on the roll. Obviously, if there is a discrepancy between someone moving—when they have given Centrelink their address and then they have moved, three months later the information is out of date, so that may explain it. Hon SIMON O’BRIEN: I think that might explain a lot of it. Mr KENNEDY: I am hypothesising a little here. Hon SIMON O’BRIEN: We will blame the feds, a time-honoured Western Australian tradition! Mr KENNEDY: My federal colleagues will not like that! Hon SIMON O’BRIEN: Thank you. The CHAIR: We have finished our questions to you. Is there anything you would like to say by way of closing? Mr KENNEDY: I do not think so. The CHAIR: I will just go through the formal closure by thanking you for attending today. We can end the broadcast there. A transcript of this hearing will be forwarded to you for correction. If you believe that any corrections need to be made because of typographical or transcription errors, you can indicate

Legislation Friday, 9 October 2020 — Session Two Page 25 those corrections on the transcript. If you want to correct fact or substance, you need to put that in a formal letter to the committee. When you have received your transcript of evidence, we will also advise you when to provide your answers to questions taken on notice. We will also clarify what those questions were, because I think we may have doubled up and asked you the same question twice, but we will go through the transcript and work that out. If you want to provide additional information or elaborate on particular points, you can provide supplementary evidence for the committee’s consideration when you return your corrected transcript of evidence. That is all we need you for today. Thank you very much for coming in; it has been very useful. Hearing concluded at 3.01 pm ______